Case T-419/07: Action brought on 19 November 2007 — Okalux v OHIM — Messe Düsseldorf (OKATECH)
Date: 2007-11-19
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), building materials, glass industry, trade-mark law

12.1.2008

EN

Official Journal of the European Union

C 8/27

Action brought on 19 November 2007 — LIBRO v OHIM
— Causley (LiBRO)

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) as there is no likelihood of confusion of
the
opposing trade marks.

(Case T-418/07)

(2008/C 8/48)

Language in which the application was lodged: German

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Parties

Action brought on 19 November 2007 — Okalux v OHIM
— Messe Düsseldorf (OKATECH)

Applicant:
Austria) (represented by: G. Prantl, lawyer)

LIBRO Handelsgesellschaft mbH (Guntramsdorf,

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Dagmar Causley (Pleidesheim, Germany)

Form of order sought

for Harmonisation in the

— Annul the decision of the Fourth Board of Appeal of the
Office
Internal Market of
3 September 2007 (Case 1454/2005-4) and alter it so as to
allow the applicant's appeal
lodged with the Office for
Harmonisation in the Internal Market and as a consequence
to reject the objection in its entirety;

— Order the Office for Harmonisation in the Internal Market

and any interveners jointly to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: LIBRO Handelsgesellschaft
mbH

Community trade mark concerned: the word and figurative mark
‘LiBRO’ for goods and services in classes 2, 9, 14, 16, 18, 20,
25, 28, 35, 38, 41 and 42 (Application No 2 616 753).

Proprietor of the mark or sign cited in the opposition proceedings:
Dagmar Causley.

(Case T-419/07)

(2008/C 8/49)

Language in which the application was lodged: German

Parties

Applicant: Okalux GmbH (Marktheidenfeld, Germany)
sented by: M. Beckensträter, lawyer)

(repre-

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Messe Düsseldorf GmbH

Form of order sought

— Annul

the decision of

the Second Board of Appeal of
3 September 2007 in Case R 766/2007-2, notified on
18 September 2007, and dismiss the application for partial
revocation of 16 December 2006 of Community trade mark
No 915 058 for the reasons stated in the appeal of 16 May
2007;

— Alternatively, refer the case back for decision on the appeal

of 16 May 2007 to the Cancellation Division;

— Order the defendant or the other parties to the proceedings
before the Board of Appeal to pay the reimbursable costs,
including the costs of the main proceedings.

Mark or sign cited in opposition: The figurative mark ‘LIBERO’ for
goods and services in classes 9, 38 and 42 (Community trade
mark No 401 141).

Pleas in law and main arguments

Decision of the Opposition Division: partial rejection of the appli-
cation.

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: the word mark ‘OKATECH’ for goods
and services in classes 6, 19 and 42 (Community trade mark
No 915 058).

Decision of the Board of Appeal: partial annulment of the decision
of the Opposition Division.

Proprietor of the Community trade mark: Okalux GmbH

C 8/28

EN

Official Journal of the European Union

12.1.2008

Applicant for the declaration of invalidity: Messe Düssseldorf GmbH

— take such further action as the Court may deem appropriate.

Decisions of the Cancellation Division: Declaration of the invalidity
of the trade mark concerned for services in class 42; revocation
of that decision with regard to the costs.

Decision of the Board of Appeal: Dismissal of the appeal as inad-
missible.

Pleas in law: In particular, infringement of Article 57 and 77a of
Regulation (EC) No 40/94 (1) and violation of the right to be
heard.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 15 November 2007 — Ryanair v
Commission

(Case T-423/07)

(2008/C 8/50)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

Form of order sought

— To declare in accordance with Article 232 EC that

the
Commission has failed to act pursuant to its obligations
under the EC Treaty by not having defined a position with
respect
lodged with the
Commission on 3 November 2005 followed by a letter of
formal notice of 31 July 2007;

to the applicant's complaint

— to order the Commission to pay the entire costs, including
the costs incurred by the applicant in the proceedings even
if, following the bringing of the action, the Commission
takes action which in the opinion of the Court removes the
need to give a decision or if the Court dismisses the applica-
tion as inadmissible;

Pleas in law and main arguments

its application,

the applicant claims that

By means of
the
Commission has failed to act by not having defined its position,
after having been invited to do so under Article 232 EC, on the
basis of a complaint filed by the applicant on 3 November
2005, regarding unlawful State aid granted to Lufthansa and its
Star Alliance partners through the exclusive use of Terminal 2
of Munich Airport or, in the alternative, anti-competitive discri-
mination in favour of Lufthansa and its Star Alliance partners,
should it be considered that the Munich Airport acted autono-
mously. The reservation of this Terminal by Munich Airport to
the applicant's potential competitors would constitute an abuse
of dominance and hence infringement of Article 82 EC.

(EC)

its first plea,

the applicant submits that

659/1999 (1), Council Regulation

In support of
the
Commission was under a duty to carry out a diligent and impar-
tial examination of the complaint in accordance with Council
Regulation
(EC)
No 1/2003 (2) and Commission Regulation (EC) 773/2004 (3),
in order to either adopt a decision declaring that the State
to aid within the meaning of
measures did not amount
Article 87(1) EC, or that those measures were to be classified as
aid within the meaning of the said provision but were compa-
tible with the common market under Article 87(2) and (3) EC,
or to initiate a procedure under Article 88(2) EC.

In the alternative, the applicant submits that the Commission
was required, upon receipt of its subsidiary complaint relating
to an alleged abuse of dominance, either to initiate a procedure
regarding the subject of the complaint or to adopt a definitive
decision rejecting the complaint, after having given the complai-
nant the opportunity to comment.

The applicant further submits that the period of twenty months
which elapsed between the applicant's complaint and its letter
of formal notice was unreasonably long, and the inaction of the
Commission during that period constitutes failure to act within
the meaning of Article 232 EC.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ L 83, p. 1).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123,
p. 18).